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8 hour restrictions--how would you handle this? West Virginia

Hi all--

I have an issue I'm struggling with and wanted to get some ideas.

I work in a regional capacity in a segment of the health care industry that is 24 hours a day/7 days a week. I use certified and license personnel to provide direct patient care around the clock. There are times that we have to force employees to continue working beyond the end of their regular shift to meet staffing requirements due to call offs, scheduling issues, etc.

We have employees who will bring in what they often call an "8 hour slip", basically a note from their doctor restricting them from working mandatory overtime. Generally speaking it's not that problematic--we try to use mandatory overtime as little as possible, anyway. However, I've found that once one or two people bring in these slips, it tends to snowball until we've got 10% or more of our employees with these restrictions. Typically, if we try to help distribute the overtime more evenly by scheduling the 8 hour employees for an extra day, they will return a slip that restricts them to 8 hours a day, 5 days per week (sometimes even 4).

It's particularly bad right now, for some reason, and I'm getting a lot of push back from my managers for some other ideas.

Before I go into what I advise managers to do, I'd like to hear some of your suggestions to see if there might be something else I can do. What would you require employees to provide? How would you consider such a request to fall? (ADA? FMLA? Both/Neither/Other?)

A simple doctor's note does not have to be honored by an employer as a "pass" to get out of essential job duties. In 24/7 healthcare settings, workiing overtime can be an essential function of the job.

With each of these employees, you need to consider:
--is the employee saying she has a disability that requires some type of accomodation?
--does the employee have an illness that qualifies under FMLA, and he's askng for intermittent FML for the shifts/overtime he claims he cannot work?

There must be a legitimate, bona fide disability for it to fall under ADA, and the disability must meet all of ADA's criteria to qualify.

There must be a legitimate illness or condition for it to fall under FMLA. The illness or condition must meet the criteria set up under FMLA.

It's can't just be that the person gets fatigued after 8 hours of work, or something vague.

It's never a good idea to just honor people's requests with a simple doctor's note, especially when it goes against business needs. You've dug yourself into a hole. A lot of doctors will write anything a patient asks them. Plus, lots of people buy doctor's notes online that appear to be legitimate, but they're not.

I've been in your shoes with a different restriction. What you need to do is treat each one individually. You need to ask for more than just a note that says "Jane can not work more than 8 hours". You need a time frame this is in place and a reason.

Next step is assessing whether ADA applies in any of these cases. Even if it does, limiting the employee to an 8 hour day may not be reasonable. There may be something else that is reasonable that you can offer. There are very few medical reasons which are going to preclude working more than 8 hours occasionally. You need to get involved in the interactive process with the employee and determine why this is recommended, and what else may be done if anything.

If ADA does not apply (and I strongly suspect that is going to be the case with many of these), the doctor's note holds no force of law and you need not abide by the request.

I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

FMLA would be more appropriate than the ADA. Either COULD be used, but you don't want to go down the ADA road unless you have no other option. Besides, I find it difficult to believe that 10% of your employees all have disabilities for which working 8 hours a day is the doctor's recommended accomodation. At least FMLA can be applied across the board. And with FMLA you can require that the employee get a second opinion (that you pay for - sorry about that) to confirm the need for FMLA. If the two opinions differ, the opinion of the third doctor (whom you and the employee mutually agree on) is binding.

The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

TS--they aren't specifying a disability nor requesting FMLA 99% of the time. When someone brings in a request for this type of thing, the first thing we do is send them back to their physician with their job description and an in house form we use titled "Physician's recommendations for fitness for duty" that basically questions whether the employee has a disability, whether permanent or temporary, requires FMLA, needs a modified work schedule, cannot perform certain functions of the job, etc. Nine times out of ten, the physician doesn't mark whether there's a disability and we have to send the thing back ten times to get it filled out correctly. In the meantime, however, we tend to err on the side of "this employee has requested an accomodation." Am I giving the employees too much by allowing the restrictions at least for the duration of getting the paperwork filled out? What would you do instead?

CBG, I agree that most of them are probably taking advantage. I'd like to be able to reserve this modification for employees who aren't abusing our policies/the law, but I'm not sure how to start reeling it back in!

Even if the employees do end up qualifying under ADA, you don't have to honor every request for accomodation, only accomodations that are reasonable in your business.

FMLA doesn't talk about "accomodations." So I don't know why you would start with honoring accomodations in FML cases.

Something like a request to only work 8 hours would not be honored in my company unless the employee qualified under ADA, AND we determined that this was something the company or department can handle. Our 24 hour settings require working flexible hours including overtime as part of the job duties, so this would not be a "reasonable" accomodation we would honor.

Perhaps we might allow this in a Worker's Comp case, on a temporary basis, in order to get an injured employee back to work ASAP. But it would be time-limited.

If I get documentation back from a doctor that indicates that there is no disability, I decline the requested accommodation until such a time as I have something in hand that corrects that notion. I will err on the side of accommodating until I get something back from the doctor, but I put a time limit on how long I will wait. If the employee needs more time, they go on their own leave until I get documentation.

I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

It is the responsibility of the employer, not the employee, to apply FMLA at least tentatively if the employer has even a suspicion that it might apply. The employee does not need to apply for it. Additionally, other than for FMLA and occasionally the ADA, a doctor's note has no force in law. So when an employee brings you a note that the doctor says they can only work 8 hours, you *could* ignore it but you'd be on safer ground to pull out all the stops. "Dr. says you can only work limited hours? Better get this completed. Bring it back within 15 days". Hand over the FMLA paperwork.

Now, one of two things will happen. Either the employee will not return the paperwork within 15 days, or he will. If he doesn't, then it's too bad so sad but he works the hours you schedule him for, including mandatory overtime. Remember, a doctor's note has no force in law outside of FMLA. If he does, you have the option of getting the additional opinions if you have a reasonable belief that he is trying to scam the system. Or, alternately, you can take the employee at face value and apply the hours that you would have scheduled him to work but didn't because of his "illness" as FMLA. Don't forget that FMLA is not unlimited. When he runs out of time, he works or he's out.

The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

I thought I had read somewhere that not working overtime could not be subtracted from an employee's FMLA entitlement...I can't remember if it was in case law or on the DOL site, I'll try to find it again. If I am not correct, please let me know!

I think Elle and CBG have better described what we're doing--erring on the side of the accommodation until we have enough documentation in hand to determine whether or not we're looking at ADA--the problem is, the employees that we suspect might be abusing the situation tend to take forever to get the information to us. Putting them off on leave in the meantime is an option we haven't tried before--might light a fire.

I'm trying to do two different things--one, prove that it is a hardship to our operations beyond a certain point and two, determine who we need to focus on accommodating and who doesn't have any entitlement.

For instance (and this isn't even the point of my post, but just to paint the picture), let's say we have twenty people working day shift, fifteen people working evening shift, and ten people working midnight shift. Once we get the "who is entitled" piece sorted out, let's say two people with this type of accommodation are currently assigned to day shift. Perhaps their restrictions result in others having to work over time (through the evening shift) an extra time every six months--I don't perceive that as a hardship, since our employees know they may and will have to work overtime periodically. However, if two people request the accommodation on midnight shift, that would likely be a hardship, since because we have twice the number of people working day shift, we have more call offs and other vacancies and the employees who work night shift are mandated much more often--almost weekly. Having one or two people restricted from working any of those overtime shifts places an undue burden on the other employees on that shift. But I feel like until I can weed out the entitled from the non-entitled, I don't have any accurate data, and am in a less defensible position should anyone raise an ADA claim if we determine not to use this as a means of accommodation anymore. Does that make sense?

I'll also point out that my biggest offenders are union environments--nothing in the contracts restricts us, but there is always that extra set of eyes (and mouths) involved.

I'm rusty on FMLA since it's handled elsewhere for both my current and former employer - I haven't actually managed FMLA since about 2006. So I may also be the one who's wrong, but I can't look it up just now. Someone else may respond or I'll look it up when I get home.

The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

I'm rusty on FMLA since it's handled elsewhere for both my current and former employer - I haven't actually managed FMLA since about 2006. So I may also be the one who's wrong, but I can't look it up just now. Someone else may respond or I'll look it up when I get home.

I'm trying to locate it right now...I'm kind of in the same boat, except I wasn't relieved of those duties until 2009. I remember locating something for my previous boss, pretty much under these same circumstances. It's neither here nor there, but my union contract at that job prohibited us from holding the missed overtime against an employee's attendance record for disciplinary purposes, but she wanted to make it count against them in SOME way, so I did a lot of research then. Not saying that it hasn't changed, though!

Under the FMLA, the term “workweek” is the employee’s usual or normal schedule (hours/days per week) prior to the start of FMLA leave, and is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition. If overtime hours are on an “as needed basis” and are not part of the employee’s usual or normal workweek, or is voluntary, such hours would neither be counted to calculate the amount of the employee’s FMLA leave entitlement nor charged to the employee’s FMLA leave entitlement. Where overtime hours are not part of the employee’s usual or normal workweek, disciplinary action may not be taken against an employee for being unable to work overtime as a result of limitations contained in a medical certification obtained for FMLA purposes. If the normal workweek is greater than 40 hours, hours worked above 40 hours must be included in determining the maximum amount of leave available to the employee under the FMLA. For example, if an employee normally works overtime in three of every four weeks, then such overtime hours are part of the usual and normal workweek schedule of the employee and would be included in calculating the amount of FMLA leave available to the employee. This would be the case even where the employer may not know in advance of the workweek when overtime will be scheduled or how much overtime will be worked that week as overtime hours may be based upon business demand that varies from week to week.

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Since this overtime is being assigned anywhere from a day to immediately before it starts, I don't know that I could argue that it is part of any employee's regular schedule.

CBG, I agree that most of them are probably taking advantage. I'd like to be able to reserve this modification for employees who aren't abusing our policies/the law, but I'm not sure how to start reeling it back in!

Just a thought, but telling the truth works. Say that certain employees have been seriously abusing this in the past and the company is being forced to tighten things up. Say that the company intends to fully comply with all laws, but certain employees have gone out of their way to spoil things for everyone else. Issue a brief all hands memo. Do not get too specific past what was said. Certainly do not name names. The advantage to this sort of all hands memo is that it makes it hard for specific employees to claim that you are picking on only them. Plus you are warning everyone ahead of time, which makes it harder for the employee to come up with good excuses.

I didn't even go the FMLA route as you are correct that unexpected OT can not count as FMLA. I suspect this is to avoid less than honest employers running down the clock on the 12 weeks by claiming that really they would have had the employee work OT on certain days.

You are looking at ADA here. You are also correct that you need to deal with who is and is not under ADA before you can do much else. If you are looking at 5 employees who can never work overtime on a shift with only 10 on it, that isn't going to be reasonable. My suspicion based on past experience is that when push comes to shove, you might have one or two that actually have an ADA valid reason and I'd be surprised if limiting them to only 8 hours a shift is the ONLY accommodation which will work. Remeber you don't have to offer the one the employee wants, just one that works.

Say the employee is diabetic and needs to be able to eat every 4 hours or check blood sugar and takes meds. Instead of limiting her to 8 hours, you could allow an additional 10 minute break to eat a snack, check her sugar and take her meds.

I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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